KANSAS CITY, MO. – The Occupational Safety and Health Administration (OSHA) announced a new emergency temporary standard (ETS) requiring covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The deadline is Jan. 4. The rule goes into force once its' published in the Federal Register.

Covered employers include those with 100 or more employees – firm or company-wide, OSHA said. The ETS also requires employers to provide paid time to workers to get vaccinated and to allow for paid leave to recover from any side effects.

The ETS also requires employers to:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee’s vaccination status.
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis. Employers must then remove the employee from the workplace, regardless of vaccination status; employers must not allow them to return to work until they meet required criteria.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

“Employers may be required to pay for testing to comply with other laws, regulations, collective bargaining agreements, or other collectively negotiated agreements,” OSHA said. “Employers are also not required to pay for face coverings.”

The ETS provides options for compliance, and OSHA is offering compliance assistance to help businesses implement the standard, including a webinar, frequently asked questions and other compliance materials. The ETS does not require employers to pay for testing.

“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases,” said US Labor Secretary Marty Walsh. “We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect.”

Stuart Appelbaum, president of the Retail, Wholesale and Department Store Union (RWDSU), which represents essential and frontline workers in grocery, pharmacy, retail, food service, food processing, distribution, building services, warehousing, nursing homes, non-profit at facilities across the United States, applauded the agency’s action.

“The new ETS announced today will go a long way to protect our members from contracting COVID-19. Too many essential and frontline workers’ lives continue to be on the line in this pandemic and having a standard to protect workers across the board is critical,” Appelbaum said. “The science shows the greatest protection against severe illness and death to COVID-19 workers can take for themselves and their families is to get vaccinated.

“Our union has been negotiating terms for workers around vaccine mandates across many industries and this new standard will provide a unilateral standard, which includes an option to adopt a testing protocol and face coverings for workers who cannot be vaccinated,” he said. “This ETS is a necessary win for workers who for too long under the last administration were left on the line unprotected.”

Other organizations disagreed and spoke out against attempts to place additional government regulations on employers.

“The Missouri Chamber opposes this onerous new federal mandate. Each workplace is different, and employers have long held the right to establish vaccine policies that work for their businesses. The Missouri Chamber believes all employers should continue to have this right when it comes to the COVID-19 vaccine,” said Daniel P. Mehan, president and chief executive officer of the Missouri Chamber of Commerce. “In contrast with the Biden Administration’s approach, we believe the federal government should instead cooperate with the employer community to encourage vaccination and support employers that exercise their legal right to require vaccination. It’s unfortunate that this new federal policy will likely further divide public sentiment around COVID-19 vaccination.”

Attorneys general from Missouri, Arizona, Montana, Nebraska, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming sued the Biden Administration to stop the mandate.

OSHA noted that leading companies across industries have taken similar actions in recent months. On Oct. 26, Tyson Foods Inc. announced that 96% of its workforce has been vaccinated for COVID-19. The company announced on Aug. 3 that it would require all its 120,000 US-based workers to be vaccinated against COVID-19 by Nov. 1.

The United Food and Commercial Workers (UFCW), the union representing 250,000 meatpacking and food processing workers, including 26,000 Tyson Foods workers, expressed support for the vaccine-or-test mandate.

UFCW International President Marc Perrone said that while the ETS didn’t go far enough, it was a critical first step toward ensuring the safety of essential workers.

“As President Biden’s new vaccine policy moves forward, UFCW will engage the administration and our employers to ensure that essential workers have a strong voice in how this policy is implemented and that paid sick leave is provided so that all workers who get sick can recover,” Perrone said.

“UFCW worked together with Tyson Foods to set a new standard with a vaccine mandate that helped get 96 percent of employees vaccinated and proved what’s possible when we listen to workers and negotiate the implementation of vaccination mandates fairly and responsibly. All companies must follow this model and ensure that their frontline workers have a voice in how this national vaccine mandate is implemented and have access to the critical PPE and support they need as the pandemic continues.”

OSHA said 750,000 people in the United States have died and millions more individuals have been infected by the coronavirus. The agency estimates that the ETS will save thousands of lives and prevent more than 250,000 hospitalizations due to workplace exposure to COVID-19 over the course of the ETS.